Australian Immigration Daily News

What do you think?

Or to pose the question appropriately “in ‘stralian”, waddya reckon?

Do you imagine if you had a client with a lengthy record of offences in both Australia and his home country, including a conviction that indisputably causes him to fail the character test, that the client’s visa application would be “DOA”, or “dead meat”?

Suppose an applicant’s criminal record is not fully disclosed on a visa application? On an incoming passenger card? When interviewed at the airport?

Would the failure to disclose the offences be nails in the coffin that could not be pried loose?

Well, perhaps surprisingly in light of the matters discussed above, there was a recent decision in the AAT where an applicant avoided visa refusal on character grounds, notwithstanding this background!

The case was Randalls and Minister for Immigration and Border Protection (Migration) (2017) AATA 2279 (20 November 2017).

This was the history of the case:

The applicant was a national of Ireland who was 42 years old at the time of the AAT decision.  Before coming to Australia he had racked up a lengthy string of traffic offences, extending across a 10 year period from 2002 – 2012, involving matters such as failing to display a tax disc in his vehicle, holding  a mobile phone while driving, and speeding.

Most serious of all, in 2011 he was involved in an incident in 2011 in which he was convicted of being intoxicated in a public place and assaulting two police officers after he was placed in a paddy wagon and refused to get out.  He was given suspended sentences totaling 12 months imprisonment for the assault charges, and it was these convictions which caused him to fail the character test.

The applicant was granted a 457 visa in August 2012, but his convictions in Ireland were not disclosed in that application.

He did declare that he had a record of convictions on his incoming passenger card when he first arrived in Australia in October 2012, but while being interviewed at the airport, he only disclosed his conviction for a speeding offence – and not the conviction for assaulting the police officers.  And, when returning to Australia in 2015 after a trip overseas, he again did not disclose his convictions in Ireland.

So how, exactly, did the applicant manage to rescue his visa application – which was one for permanent residency under the Employer Nomination Scheme – Subclass 186?

Well first, with respect to the assault offences which caused him to fail the character test: there was evidence before the Tribunal that at the time of those offences, the applicant was so drunk that “he did not know what he was doing and does not have a very good recollection of what actually happened”.  More significantly, the applicant did not otherwise have a pattern of violent offending.

What about his failure to disclose his convictions?  In relation to his 457 visa application, the Tribunal accepted that he had disclosed his convictions to the human resources department of the company that planned to employ him in Australia, and that the failure to disclose the convictions was the result of an “error” on the part of the migration agent who had completed the application (notwithstanding that the application form for the 457 visa stated that the applicant had not received assistance in filling out the application form).

What about the failure to disclose the convictions on 2 occasions while travelling into Australia? It was the applicant’s explanation that he did not disclose the convictions when he was interviewed at the airport when he and his family were making their first arrival to Australia in 2012 because he believed the convictions had been disclosed on his 457 visa application and because he did not “want to put his and his family’s future at risk…in case they were not allowed to enter the country”.

As for the second occasion, the applicant attempted to explain his failure to disclose his convictions by stating that he had been tired after a 20 hour flight and wanted to get home, again that he had believed that he had disclosed his convictions on his 457 visa application, and that he didn’t think he had to disclose convictions he had accrued for drink driving offences in Australia because he thought that the Australian authorities would be aware of them and that therefore he did not have to disclose them.

While the failure to disclose the offences certainly was not viewed favourably by the Tribunal, it was not enough, by itself, to be fatal to his visa application.

So what factors did enable the applicant to salvage the application?

First: there was evidence that no one had been injured as a result of his drink driving offences either in Australia or in New Zealand, and evidence was produced by a forensic psychologist that the applicant presented a low risk of re-offending and a low risk to the Australian community.

Second: “glowing” character references were provided by the applicant’s employer (the sponsor of his 186 visa application), his co-workers and his friends;

Third: there was a finding by the Tribunal that it would be in the best interests of the applicant’s 14 year old daughter for the visa application not to be refused, as she had settled into Australian life and it would be very disruptive for her to return to Ireland.

And lastly, and perhaps most importantly: it was strongly in the interests of his employer, a business based in regional Queensland, that the visa not be refused. The evidence was that the applicant was a highly skilled manager in a particular form of scaffolding, that he had trained hundreds of other people, and that his employer would struggle without him as the employer had no other employee in NSW who could fulfill his work responsibilities.

So, what saved the application? The relatively “low-level” nature of the criminal offending that caused the applicant to fail the character test; the best interests of his daughter being accepted as a factor against refusal; strong character references; and the importance of his skills to his Australian employer.

The right result?